The Rt Hon Ruth Kelly is a Senior Fellow at Policy Exchange and was an MP from 1997-2010, holding ministerial roles including Secretary of State for Transport, Secretary of State for Communities and Local Government and Secretary of State for Education and Skills.
As might be expected from such a distinguished jurist, Lord Judge’s lecture on the prerogative and executive government across four centuries is both learned and stimulating. His central message, about the need to avoid unaccountable power and unaccountable governments, is an important and valuable one.
Nevertheless, I strongly believe that Lord Judge’s core message, that “a majority in the Commons enables [a government] to do anything and everything” is overstated. I can speak from experience. Responsible for some of the highest-profile reforms in the Blair government – introducing self-governing Foundation Schools – it never felt to me that the authority granted by office gave me the authority to impose sweeping changes uncontested. At the time, Labour had an overall majority of over 100 (the last time any government had such a commanding majority) and the Bill had the full backing of Number 10, yet these were not sufficient to guarantee the smooth passage of the Bill through Parliament. The principles and detail of the Bill were poured over by Labour backbenchers. Days were spent meeting key individuals in groups or one-to-one. Critical amendments were made, particularly on schools’ admissions policy. And it still proved difficult to guarantee the support of the governing party. In the effect, in a rare move, the Schools Bill only passed because of Opposition support. As a Minister, I was acutely aware of the power of the Commons (and to a lesser extent the Lords), which arguably is at least as important in deciding how a policy is framed before it is tabled as legislation, in an attempt to gain support, as much in how it fares in the Commons once tabled.
Government Ministers seem to be facing a rolling procession of rebellions on everything from housing policy and onshore wind farms to the online safety bill. Even foreign policy stances, such as the UK’s relationship with China are being challenged. That must mean that many policies ministers would ideally like to put before the electorate, never even make it to the Commons for debate, despite the Government’s sizeable majority.
In my view, there are at least three dimensions which are not mentioned in Lord Judge’s speech, but all of which serve to significantly limit government’s legislative freedom. First, our constitution is no longer the Jacobean one Lord Judge invokes in his discussion of the modern UK constitution.
Reforms undertaken under successive governments—from my time in government I count initiatives such as the introduction of freedom of information legislation (supported by all major parties) and the enactment of devolution settlements for Scotland and Wales—have significantly restricted successive governments’ latitude. Whole areas of policy have been effectively removed from the purview of the government of the day.
Meanwhile, MPs are more publicly accountable to the voting public than ever, through the televising not only of all House proceedings, but also of committee meetings, which can be clipped and instantly shared across the country. It’s a far cry from the mythical days when MPs stumbled into the division lobbies in evening dress, having been called up for muster from their dinners by whips or the bell.
Moreover, as anyone with experience of parliamentary management will know, there are majorities and there are majorities, and the size of a government’s majority will have a significant impact on its freedom of manoeuvre, a fact that has been accentuated by recent parliamentary cohorts’ greater tendency toward rebelliousness.
Finally, as we have seen with the dethroning of Liz Truss after her six weeks in office, the role of arms’ length institutions such as the Bank of England and the OBR, but also of international financial markets in constraining governments’ policy options needs to feature in any account of the modern United Kingdom executive government.
In theory, of course, the Bank of England’s independence can be clawed back and the OBR can be ignored. In practice, even rumours that the incoming Chancellor of the Exchequer considered these options was sufficient to send the pound sterling’s value into a nosedive and, with it, the Truss government’s political future. The mismatch between the theory and reality of the strength of executive power could not be greater.
In sum, although the executive may possess extensive powers on paper, exercisable with the barest of parliamentary majority, this account of the United Kingdom constitution does not reflect the enormous constraints which exist on executives today. Lord Judge can rest assured that Hobbes has not yet triumphed over Locke.